Price v. Simmons et al

Filing 187

ORDER granting 185 Letter Motion for Discovery. Application GRANTED. The Court will issue the requested subpoena and rider under separate cover. The Clerk of Court is directed to terminate the motion at docket number 185. (Signed by Judge Katherine Polk Failla on 1/4/2021) (rro)

Case 1:15-cv-05871-KPF Document 187 Filed 01/04/21 Page 1 of 2

December 31, 2020
Via ECF
The Hon. Katherine Polk Failla
United States District Court
Southern District of New York
40 Foley Square, Room 2103
New York, New York 10007
Re:

MEMO ENDORSED

Price v. City of New York, et al., No. 15-CV-5871
Request to Issue Subpoena

Dear Judge Failla:
I write on behalf of Defendant Metropolitan Transportation Authority (“MTA”) Police Officers
Alison Schmitt and Stephen Mears (“MTA Defendants”) in the above-referenced matter to
request that either Your Honor, Magistrate Judge Freeman, or the Clerk of Court endorse the
enclosed subpoena for documents relevant to the MTA Defendants’ defense of this litigation or
issue an equivalent order.
Your Honor may recall that Plaintiff Kelly Price’s claims against the MTA Defendants are tied
to those against the other defendants by the allegation (not present in the Fifth Amended
Complaint) that the MTA Defendants made the decision to remove her to a hospital only after
having “bec[o]me aware of her status as an alleged fabricator after they ran her name through
their system at the MTA police station,” and saw that “she had been placed on the City’s ‘Do
Not Serve’ list.” See Dkt. No. 161.
I previously communicated to the Court that I had learned that MTA police do have access to a
shared law enforcement database called “eJusticeNY,” which it was my understanding was
administered by the New York State Division of Criminal Justice Services (“DCJS”). Your
Honor may also recall having endorsed a subpoena for records from DCJS on November 30,
2020, which I served on DCJS shortly after, because DCJS regards even showing counsel for the
MTA a person’s records in that system as a violation of the contract to use the system.
On December 29 and 30, 2020, I had discussions with Michael Flaherty, Acting General Counsel
of DCJS. He explained to me that eJusticeNY is actually not a single database but a portal for
accessing numerous database modules, and those that can be accessed through the portal vary
from one law enforcement agency to another, depending on the access arrangements the agency
has made. He further explained that DCJS is only responsible for the actual data in two of those
modules, the Domestic Incident Reports (“DIR”) and New York State Identification and
Intelligence System (“NYSIIS”), the latter of which reflects a person’s criminal history. Other
entities, such as the New York State Police, are responsible for other modules.
DCJS is able to provide a copy of Ms. Price’s report from each of those systems and is able to
provide information regarding who accessed this information and on which dates. However,

Hon. Kath Case 1:15-cv-05871-KPF Document 187 Filed 01/04/21 Page 2 of 2
December 31, 2020
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DCJS’s position is that the prior subpoena did not encompass the information regarding users
accessing the reports, and they would require a new court-ordered subpoena to provide either a
statement or record as to whether or not any MTA police officers accessed Ms. Price’s NYSIIS
or DIR information in November 2016. I am writing to request that new subpoena be signed.
I note that, per my conversations with Mr. Flaherty, DCJS is only planning to provide records
relevant to MTA Defendants’ defenses. If Your Honor’s expectation is that MTA Defendants
obtain the entirety of available records regarding Ms. Price so that she may use them for her own
purposes, I ask that Your Honor make this clear in a rider to the subpoena or else instruct me to
do so.
With regard to the other modules, I am currently seeking further information on which modules
MTA police have access to through eJusticeNY. Upon obtaining that information, I will find out
what entity is responsible for each module from Mr. Flaherty. I will then need to obtain the
records separately from each of those entities and will likely require further court-ordered
subpoenas to do so, as that requirement as to form is common among New York State
government entities (MTA included).
In light of this and in light of Your Honor’s prior offer to assist in obtaining the records, MTA
Defendants request that the Court endorse the enclosed subpoena for documents or issue an
equivalent order.
Respectfully submitted,
Jason Douglas Barnes
Attorney for MTA Defendants
CC:

Plaintiff and Attorneys for Co-Defendants

Application GRANTED. The Court will issue the requested subpoena
and rider under separate cover. The Clerk of Court is directed
to terminate the motion at docket number 185.

Dated:

January 4, 2021
New York, New York

SO ORDERED.

HON. KATHERINE POLK FAILLA
UNITED STATES DISTRICT JUDGE